High School Can Prevent the Football Coach from Continuing to Join with his Team in Organized Group Prayer

After 23 years of leading his team in organized group prayer at pregame dinners and just prior to the start of football games, Coach Marcus Borden was ordered to stop by administrators of the East Brunswick High School in New Jersey. Although he quit leading the prayers, he invited the team captains to solicit the team members to see if they wanted to continue the practice of praying in a student led effort. The coach then began to bow his head and “take a knee” with the team as a member of the team led the prayer. Again, school officials intervened, ordering him to stop. He sued, claiming that his First Amendment rights were being violated. Remarkably, a federal district court judge in Newark agreed with the coach and the school board appealed. This week, the United States Court of Appeals for the Third Circuit sided with the school board. Based on the history of the coach’s conduct, a three-judge panel ruled that the coach’s acts cross the line and constitute an unconstitutional endorsement of religion. Although the coach claimed to be engaging only in an act of team unity, “a reasonable observer would perceive his actions as endorsing religion,” whether or not that was his intent. The opinion was written by former Pennsylvania Attorney General D. Michael Fisher and was joined by Judges Theodore McKee and Maryanne Trump Barry. Both McKee and Barry wrote separate concurring opinions. McKee suggested that he would have issued a broader ruling finding the coach’s conduct violative of the Establishment Clause regardless of his history of prior prayer with the team. Judge Barry joined Fisher’s opinion on the narrower ground. JSPAN participated in the case by joining with the American Jewish Congress in a friend of the court brief to the Court of Appeals. The JSPAN brief, written by attorney Marc Stern, relied on a Supreme Court case decided last year holding that when public employees act pursuant to their official duties, their speech is not entitled to protection under the First Amendment. JSPAN told the court that “over and above the compelling interest of the school in complying with the Establishment Clause …, public schools have an important interest in preserving the perception amongst students and parents that the schools and their employees are neither political nor religious partisans.” This argument was reflected in Judge Fisher’s opinion. Although public employees retain their right to speak out on matters of “public concern,” the coach’s act of bowing his head and taking a knee “are meant for the consumption of the football team only,” and thus do not trigger the protection of a public employee’s free speech rights. By the coach’s own admission, he was “acting as a proxy for the school district.” wrote Judge Fisher. “The school district may choose both how its students are taught and what its students are taught. Here, the school district … determined that Borden’s pedagogic methods were inappropriate.” The case has been closely watched not only by those interested in the law regarding separation of church and state, but also by members of the local community. Virulent anti-Semitism was directed at Jewish members of the cheerleading squad by members of the community who believed that they had prompted the school board to act. The battle in this case is not over as the coach and his lawyers have indicated that they intend to carry this fight to the Supreme Court. If they do, JSPAN intends to continue to support the actions of the school district to protect the religious rights of all of its students. To read a copy of the Court of Appeals’ decision click here. To read a copy of the JSPAN amicus brief click here.